U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:08-cv-01548-CKK CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON et al v. CHENEY et al Assigned to: Judge Colleen Kollar-Kotelly Cause: 05:702 Administrative Procedure Act Date Filed: 09/08/2008 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant Plaintiff CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON represented by Anne L. Weismann CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 1400 Eye Street, NW Suite 450 Washington, DC 20005 (202) 408-5565 Ext. 108 Fax: (202) 588-5020 Email: aweismann@citizensforethics.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff STANLEY I. KUTLER represented by Anne L. Weismann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff MARTIN J. SHERWIN represented by Anne L. Weismann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff AMERICAN HISTORICAL ASSOCIATION represented by Anne L. Weismann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff ORGANIZATION OF AMERICAN HISTORIANS represented by Anne L. Weismann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff SOCIETY OF AMERICAN ARCHIVISTS represented by Anne L. Weismann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Plaintiff SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS represented by Anne L. Weismann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant RICHARD B. CHENEY Vice President of the United States of America represented by Helen H. Hong U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Avenue, NW 6th Floor Washington, DC 20530 (202) 514-5838 Email: helen.hong@usdoj.gov LEAD ATTORNEY Defendant EXECUTIVE OFFICE OF THE PRESIDENT represented by Helen H. Hong (See above for address) LEAD ATTORNEY Defendant EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT represented by Helen H. Hong (See above for address) LEAD ATTORNEY Defendant NATIONAL ARCHIVES AND RECORDS ADMINISTRATION represented by Helen H. Hong (See above for address) LEAD ATTORNEY Defendant ALLEN WEINSTEIN Archivist of the United States, in his official capacity represented by Helen H. Hong (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Date Filed # Docket Text 09/08/2008 1 COMPLAINT against RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN ( Filing fee $ 350, receipt number 4616014861) filed by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS. (Attachments: # 1 Civil Cover Sheet)(td, ) (Entered: 09/10/2008) 09/08/2008 2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON identifying Corporate Parent NONE for CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (td, ) (Entered: 09/10/2008) 09/08/2008 SUMMONS (7) Issued as to RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 09/10/2008) 09/08/2008 3 MOTION for Preliminary Injunction by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (td, ) (Entered: 09/10/2008) 09/10/2008 4 SCHEDULING ORDER. As set forth during the Conference Call on the record in this case on September 10, 2008 with counsel for all parties participating: (1) No later than 5:00 p.m. on Friday, September 12, 2008, the parties shall file a document memorializing their agreement regarding the retention of documents during the pendency of this litigation and any ensuing appeal. That document may consist of a memorandum of understanding, stipulation, or proposed consent order; (2) CREW shall file its Motion for Summary Judgment, accompanied by a Statement of Material Facts Not in Dispute as required by Local Civil Rule 7(h), no later than September 22, 2008; (3) Defendants shall file their Opposition to CREW's Motion for Summary Judgment, as well as any Motion to Dismiss CREW's Complaint, no later than October 20, 2008; (4) CREW shall file its Reply in support of its Motion for Summary Judgment, as well as its Opposition to any Motion to Dismiss filed by Defendants, no later than November 7, 2008; (5) Defendants shall file their Reply in support of any Motion to Dismiss no later than November 17, 2008; (6) the parties shall comply fully with Local Civil Rule 7(h)(1) and 7(h)(2), as recently revised; and (7) if either party's filing (including brief and exhibits) totals 25 pages or more, that party shall deliver a courtesy copy to Chambers, including tabbed exhibits. Signed by Judge Colleen Kollar-Kotelly on September 10, 2008. (lcckk2) (Entered: 09/10/2008) 09/10/2008 5 ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar-Kotelly, signed on September 10, 2008. (SM) (Entered: 09/10/2008) 09/10/2008 Set/Reset Deadlines: Parties shall file a document memorializing their agreement regarding the retention of documents during the pendency of this litigation and any insuing appeal due by 5:00 p.m. on 9/12/2008. (clv, ) (Entered: 09/11/2008) 09/11/2008 Set/Reset Deadlines: Cross Motions due by 10/20/2008. Response to Cross Motions due by 11/7/2008. Reply to Cross Motions due by 11/17/2008. Parties document memorializing gheir agreement regarding the retention of documents during the pendency of this litigation and any ensuing appeal due by 5:00 p.m. on 9/12/2008. Summary Judgment motions due by 9/22/2008. Response to Motion for Summary Judgment due by 10/20/2008. Reply to Motion for Summary Judgment due by 11/7/2008. (clv, ) Modified on 9/11/2008 (clv, ). (Entered: 09/11/2008) 09/12/2008 MINUTE ORDER (paperless). On Friday, September 12, 2008, the Court was advised by both parties that, notwithstanding their previous agreement to file a document memorializing their agreement regarding the retention of documents during the pendency of this litigation and any ensuing appeal, see Docket No. 4 , they had been unable to reach such an agreement. The Court therefore held a conference call on the record with counsel for all parties participating. When it became clear that no agreement could be reached covering all Defendants, the Court reimposed the briefing schedule required by Plaintiff's motion for preliminary injunction, which had previously been mooted by the parties' agreement to have the case resolved on the merits, contingent on the agreement described above. Accordingly, Defendants' Opposition to Plaintiff's Motion for Preliminary Injunction shall be filed no later than 5:00 p.m. on Tuesday, September 16, 2008, and a courtesy copy shall be delivered to Chambers no later than 5:00 p.m. Further, the briefing schedule for Plaintiff's Motion for Summary Judgment and Defendants' Motion to Dismiss shall remain as previously set on September 10, 2008. See Docket No. 4 . Signed by Judge Colleen Kollar-Kotelly on September 12, 2008. (lcckk2) (Entered: 09/12/2008) 09/12/2008 6 NOTICE of Appearance by Helen H. Hong on behalf of all defendants (Hong, Helen) (Entered: 09/12/2008) 09/13/2008 Set/Reset Deadlines: Responses due by 9/16/2008 (clv, ) (Entered: 09/13/2008) 09/15/2008 7 ENTERED IN ERROR.....AMENDED COMPLAINT against RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN filed by SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS.(nmw, ) Modified on 9/15/2008 (nmw, ). (Entered: 09/15/2008) 09/15/2008 8 AMENDED COMPLAINT against RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN filed by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS.(nmw, ) (Entered: 09/15/2008) 09/15/2008 NOTICE OF CORRECTED DOCKET ENTRY: Docket Entry 7 Amended Complaint was entered in error (incorrect document title) and has been refiled as Docket Entry 8 . (nmw, ) (Entered: 09/15/2008) 09/16/2008 9 Memorandum in opposition to re 3 MOTION for Preliminary Injunction filed by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Hong, Helen) (Entered: 09/16/2008) 09/16/2008 10 ORDER. The Court has reviewed Defendants' 9 Opposition to Plaintiff's Motion for a Preliminary Injunction, which is supported by two Declarations, declared under penalty of perjury. In light of their sworn Declarations, Defendants' Opposition argues that Plaintiff cannot demonstrate any likelihood of irreparable injury and therefore lacks grounds for seeking the issuance of a preliminary injunction. Accordingly, no later than 5:30 p.m. on Wednesday, September 17, 2008, Plaintiff shall file a Reply in support of its Motion for Preliminary Injunction addressing whether a basis exists for issuing a preliminary injunction at this time. Alternatively, Plaintiff may indicate to the Court that no such basis exists, in which case this litigation will proceed on the merits of Plaintiff's Complaint. Signed by Judge Colleen Kollar-Kotelly on September 16, 2008. (lcckk2) (Entered: 09/16/2008) 09/16/2008 Set/Reset Deadlines: Replies due by 9/17/2008. (clv, ) (Entered: 09/16/2008) 09/17/2008 11 REPLY to opposition to motion re 3 MOTION for Preliminary Injunction filed by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS. (Attachments: # 1 Exhibit 1, 2)(Weismann, Anne) (Entered: 09/17/2008) 09/17/2008 12 ORDER requesting that Defendants answer a specific question regarding the Declaration of Claire M. O'Donnell. Signed by Judge Colleen Kollar-Kotelly on September 17, 2008. (lcckk2) (Entered: 09/17/2008) 09/18/2008 13 RESPONSE TO ORDER OF THE COURT re 12 Order filed by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN. (Attachments: # 1 Exhibit 1)(Hong, Helen) (Entered: 09/18/2008) 09/19/2008 14 STRICKEN PURSUANT TO MINUTE ORDER FILED 9/19/2008..... MOTION Set Aside Briefing Schedule by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS (Weismann, Anne) Modified on 9/22/2008 (nmw, ). (Entered: 09/19/2008) 09/19/2008 MINUTE ORDER (paperless) striking 14 Plaintiffs' Motion to Set Aside Briefing Schedule. Plaintiffs' Motion constitutes an improperly filed sur- reply, which they did not request leave of Court to file and the Court will not consider Plaintiffs' arguments in resolving their pending Motion for Preliminary Injunction. A Memorandum Opinion resolving that motion will be forthcoming. Accordingly, the Court shall temporarily suspend the briefing schedule, and no party shall file any papers with the Court pending the Court's resolution of the Motion for Preliminary Injunction. After the Court's Memorandum Opinion issues, the Court will address the litigation schedule with both parties. Signed by Judge Colleen Kollar-Kotelly on September 19, 2008. (lcckk2) (Entered: 09/19/2008) 09/20/2008 15 ORDER granting 3 Plaintiffs' Motion for Preliminary Injunction. Defendants shall preserve throughout the pendency of this litigation all documentary material, or any reasonably segregable portion thereof created or received by the Vice President, his staff, or a unit or individual of the Office of the Vice President whose function is to advise and assist the Vice President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the Vice President, without regard to any limiting definitions that Defendants may believe are appropriate. In light of the foregoing injunction, all documentary material at issue in this litigation shall be preserved, such that Plaintiffs can receive the full relief they request in the event that they prevail in this litigation. Nothing in this Order shall prevent any of the Defendants from transferring any of the documentary materials encompassed by this Order to the National Archives and Records Administration and/or the Archivist of the United States on or before January 20, 2009, pursuant to the Presidential Records Act, provided that any and all records transferred to NARA and/or the Archivist shall be treated as if fully covered by the Presidential Records Act. Signed by Judge Colleen Kollar-Kotelly on September 20, 2008. (lcckk2) (Entered: 09/20/2008) 09/20/2008 16 MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on September 20, 2008. (lcckk2) (Entered: 09/20/2008) 09/22/2008 MINUTE ORDER (paperless). In light of the Court's September 20, 2008 Order granting Plaintiffs' Motion for a Preliminary Injunction, the parties shall confer to discuss whether or not it is appropriate for one or both parties to take narrow and expedited discovery in this case, and to the extent it is appropriate, the amount and nature (e.g., depositions, interrogatories) of such discovery. Accordingly, the parties shall submit a Joint Status Report to the Court no later than 1:00 P.M. on September 23, 2008, indicating their positions with respect to the above and, if appropriate, including an expedited discovery and briefing schedule, which in no circumstance may exceed the outside date of November 17, 2008. The Court shall also hold a conference call with the parties at 3:00 P.M. on September 23, 2008, to discuss the same.Signed by Judge Colleen Kollar-Kotelly on September 22, 2008. (lcckk1) (Entered: 09/22/2008) 09/23/2008 17 MOTION for Reconsideration re 16 Memorandum & Opinion, 15 Order on Motion for Preliminary Injunction,,,,, by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN (Attachments: # 1 Exhibit 1)(Hong, Helen) (Entered: 09/23/2008) 09/23/2008 18 STATUS REPORT by SOCIETY OF AMERICAN ARCHIVISTS, RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS. (Weismann, Anne) (Entered: 09/23/2008) 09/23/2008 MINUTE ORDER (paperless). The Court held a conference call on the record with counsel for both parties on September 23, 2008. For the reasons stated on the record, Defendants' 18 Motion for Reconsideration of the Court's Preliminary Injunction Order issued on September 20, 2008, shall be held-in- abeyance, and shall be rolled into a briefing on the merits pursuant to the schedule set forth below. The Court shall grant Plaintiffs' request to conduct limited and expedited discovery by deposing the two individuals identified in the parties' September 23, 2008 Status Report. An Order describing the basis for this discovery that incorporates and supplements the discussion on the record, and that sets out the scope of such discovery, shall be forthcoming. Because of the need for expedition, such discovery shall be completed no later than October 6, 2008, to allow the parties time to comply with the following expedited briefing schedule. Plaintiffs shall file a Motion for Summary Judgment no later than October 17, 2008. Defendants shall file an Opposition and Cross-Motion no later than November 3, 2008. Plaintiffs shall file a Reply and Opposition no later than November 12, 2008. Defendants shall file a Reply no later than November 17, 2008. Signed by Judge Colleen Kollar-Kotelly on September 23, 2008. (lcckk1) (Entered: 09/23/2008) 09/23/2008 19 AMENDED ORDER. The Court is amending its September 20, 2008 Order in response to Defendants' 18 Motion for Clarification, with the consent of Plaintiffs. Signed by Judge Colleen Kollar-Kotelly on September 23, 2008. (lcckk1) (Entered: 09/23/2008) 09/24/2008 20 DISCOVERY ORDER setting forth the basis and parameters of discovery in this action. Signed by Judge Colleen Kollar-Kotelly on September 24, 2008. (lcckk1) (Entered: 09/24/2008) 09/25/2008 21 NOTICE of Filing by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS re 11 Reply to opposition to Motion, (Attachments: # 1 Exhibit)(Weismann, Anne) (Entered: 09/25/2008) 09/25/2008 22 NOTICE of Appearance by David L. Sobel on behalf of all plaintiffs (Sobel, David) (Entered: 09/25/2008) 09/30/2008 23 MOTION to Stay re Order on Motion for Reconsideration,,,,, 20 Order by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT (Hong, Helen) (Entered: 09/30/2008) 09/30/2008 MINUTE ORDER (paperless). At the behest of Plaintiffs' counsel, the Court scheduled a conference call between the Parties for 9 a.m., Wednesday, October 1, 2008, to be held on the record to resolve issues relating to the court ordered discovery. Subsequently at 3:50 p.m. on September 30, 2008, Defendants filed their Emergency Motion 23 For Stay Pending Petition For Writ Of Mandamus Or, In The Alternative, For A Protective Order. Because of the need for expedition in that Defendants' Emergency Motion for Stay must be resolved before discovery can be undertaken, the Court orders that Plaintiffs file their response, only as to the Stay portion of Defendants' Emergency Motion, in writing by no later than Noon on Wednesday, October 1, 2008. The Court will discuss orally during the 9 a.m. October 1, 2008 conference call on the record any issues concerning the Protective Order portion of Defendants' Emergency Motion, and therefore Plaintiffs do not need to address in writing those issues at this time. Signed by Judge Colleen Kollar-Kotelly on September 30, 2008. (lcckk2) (Entered: 09/30/2008) 09/30/2008 24 MOTION for Protective Order by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN. (See Docket Entry 23 to view document). (nmw, ) (Entered: 10/01/2008) 10/01/2008 Minute Entry for proceedings held before Judge Colleen Kollar- Kotelly: Telephone Conference held in chambers on 10/1/2008. (Court Reporter: Lisa Hand) (gdf) (Entered: 10/01/2008) 10/01/2008 25 Memorandum in opposition to re 23 MOTION to Stay re Order on Motion for Reconsideration,,,,, 20 Order filed by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS. (Weismann, Anne) (Entered: 10/01/2008) 10/05/2008 26 ORDER DENYING Defendants' 23 Motion for Stay Pending Petition for Writ of Mandamus and GRANTING Defendants' 24 Motion for a Protective Order. Plaintiffs shall not videotape the two depositions authorized by the Court in its September 24, 2008 Discovery Order, and the two depositions shall remain suspended pending resolution of Defendants' Emergency Petition for Writ of Mandamus and Motion for Stay Pending Mandamus before the Court of Appeals for the District of Columbia Circuit. Signed by Judge Colleen Kollar-Kotelly on October 5, 2008. (lcckk1) (Entered: 10/05/2008) 10/05/2008 27 MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on October 5, 2008. (lcckk1) (Entered: 10/05/2008) 10/08/2008 MINUTE ORDER (paperless). Because the parties' submissions pursuant to their Mandamus Petition are unavailable on ECF, the Court is requesting that Defendants deliver to Chambers a courtesy copy of their Reply. Plaintiffs delivered a courtesy copy of their Response to Chambers on October 7, 2008. Signed by Judge Colleen Kollar-Kotelly on October 8, 2008.(lcckk1) (Entered: 10/08/2008) 10/14/2008 28 MOTION for Costs and Attorneys' Fees by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS (Attachments: # 1 Exhibit)(Weismann, Anne) (Entered: 10/14/2008) 10/28/2008 29 Memorandum in opposition to re 28 MOTION for Costs and Attorneys' Fees filed by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN. (Attachments: # 1 Exhibit 1-6)(Hong, Helen) (Entered: 10/28/2008) 10/31/2008 30 ORDER. In light of the decision issued on October 31, 2008, by the United States Court of Appeals for the District of Columbia Circuit, the Court shall modify its 20 Discovery Order issued on September 24, 2008, to substitute Claire O'Donnell, the Vice President's Deputy Chief of Staff, as a witness for David Addington, the Vice President's Chief of Staff. The Court's Discovery Order shall remain unchanged in all other respects. Signed by Judge Colleen Kollar-Kotelly on October 31, 2008. (lcckk1) (Entered: 10/31/2008) 10/31/2008 MINUTE ORDER (paperless). No later than 12:00 P.M. on November 4, 2008, the parties shall submit a Joint Status Report notifying the Court as to when they shall conduct the two depositions described in the Court's Discovery Order dated September 24, 2008 (as modified), so the Court may inquire into the availability of the Magistrate Judges. The parties shall complete their discovery no later than November 14, 2008. Once completed, the Court shall contact the parties to set a schedule for further proceedings. Signed by Judge Colleen Kollar-Kotelly on October 31, 2008. (lcckk1) (Entered: 10/31/2008) 11/03/2008 Set/Reset Deadlines: Complete Discovery by 11/14/2008. Joint Status Report due by 11/4/2008 (gdf) (Entered: 11/03/2008) 11/03/2008 31 REPLY to opposition to motion re 28 MOTION for Costs and Attorneys' Fees filed by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS. (Weismann, Anne) (Entered: 11/03/2008) 11/03/2008 32 STATUS REPORT (Joint) by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Hong, Helen) (Entered: 11/03/2008) 11/10/2008 Minute Entry for proceedings held before Judge Colleen Kollar-Kotelly: Discussion regarding "privilege issue" during a deposition held on 11/10/2008. (Court Reporter Lisa Hand.) (dot, ) (Entered: 11/18/2008) 11/11/2008 MINUTE ORDER (paperless). The parties contacted Chambers yesterday to indicate that a "privilege issue" had arisen during a deposition conducted on November 10, 2008, and sought the Court's guidance. The parties were instructed to call Chambers on November 12, 2008, to set a time for a conference call. Assuming this privilege issue remains unresolved, each party shall submit to the Court a Status Report indicating the following information: (1) a statement of the issue, (2) what privilege has been asserted, and (3) any additional information the party believes would assist the Court in resolving the issue. The Status Reports shall be no longer than two pages each and shall be submitted no later than 10:30 A.M. on November 12, 2008. Once the Court receives the Status Reports, a conference call can be set. Signed by Judge Colleen Kollar- Kotelly on November 11, 2008. (lcckk1) (Entered: 11/11/2008) 11/12/2008 33 STATUS REPORT by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS. (Attachments: # 1 Exhibit) (Weismann, Anne) (Entered: 11/12/2008) 11/12/2008 34 STATUS REPORT by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN. (Hong, Helen) (Entered: 11/12/2008) 11/12/2008 MINUTE ORDER (paperless). The Court held two conference calls on the record with counsel for all parties participating on November 12, 2008, to discuss an issue that arose during the deposition of Nancy Regan Smith. The issue involves Plaintiffs' deposition questions concerning three memoranda created by Counsel to the President. As proposed by Defendants, the Court accepted copies of the three memoranda for an in camera review. After considering the parties' arguments during the calls and reflected in their Status Reports filed November 12, 2008, and after thoroughly reviewing the three memoranda, the Court found that none of the three documents were subject to deliberative process or attorney-client privileges. The Court further found that the content of the first two memoranda (dated February 26, 2001, and June 14, 2006) fell outside the scope of the Court's Discovery Order in this case, but that the content of the third memorandum (dated October 8, 2008) fell within the scope of the Court's Discovery Order because it contained references to Vice Presidential Records and included at least one definition of what constitutes a Vice Presidential Record. Accordingly, the Court held that Plaintiffs could properly question Defendants' witnesses about the third memoranda. Signed by Judge Colleen Kollar-Kotelly on November 12, 2008. (lcckk1) (Entered: 11/12/2008) 11/12/2008 Minute Entry for proceedings held before Judge Colleen Kollar-Kotelly: Telephone Conference held on 11/12/2008. (Court Reporter Wendy Ricard.) (dot, ) (Entered: 11/19/2008) 11/14/2008 MINUTE ORDER (paperless). The parties shall submit a Joint Status Report no later than November 18, 2008, indicating how the parties want to proceed, including a proposed briefing schedule. Signed by Judge Colleen Kollar- Kotelly on November 14, 2008.(lcckk1) (Entered: 11/14/2008) 11/18/2008 35 STRICKEN PURSUANT TO MINUTE ORDER FILED 11/18/2008..... MOTION for Order Authorizing Plaintiffs to Depose David Addington by SOCIETY OF AMERICAN ARCHIVISTS, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, STANLEY I. KUTLER, SOCIETY FOR HISTORIANS OF AMERICAN FOREIGN RELATIONS, MARTIN J. SHERWIN, AMERICAN HISTORICAL ASSOCIATION, ORGANIZATION OF AMERICAN HISTORIANS (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Weismann, Anne) Modified on 11/19/2008 (nmw, ). (Entered: 11/18/2008) 11/18/2008 36 STRICKEN PURSUANT TO MINUTE ORDER FILED 11/18/2008..... MOTION to Dismiss by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Hong, Helen) Modified on 11/19/2008 (nmw, ). (Entered: 11/18/2008) 11/18/2008 37 STATUS REPORT by EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Hong, Helen) (Entered: 11/18/2008) 11/18/2008 MINUTE ORDER (paperless) STRIKING Plaintiffs' 35 Motion to Depose David Addington and Re-Depose Nancy Kegan Smith and STRIKING Defendants' 36 Motion to Dismiss, as both motions have been filed in violation of the Court's November 14, 2008 Minute Order. The Court shall review the parties' Joint Status Report (which the Court did request to be filed) and shall thereafter contact the parties regarding a further schedule. Signed by Judge Colleen Kollar-Kotelly on November 18, 2008. (lcckk1) (Entered: 11/18/2008) 11/20/2008 38 ORDER SETTING SCHEDULE FOR FURTHER PROCEEDINGS. No later than December 1, 2008, Plaintiffs may re-depose Nancy Kegan Smith for the limited purpose of asking questions related to the October 8, 2008 Memorandum described in the attached order. If Ms. Smith lacks sufficient personal knowledge of the Memorandum to answer Plaintiffs' questions concerning the same, Defendants must produce the Memorandum to Plaintiffs at Ms. Smith's deposition. The parties shall also comply with the following briefing schedule. Defendants' Motion to Dismiss and/or Motion for Summary Judgment is due on or before December 8, 2008. Plaintiffs' Opposition to Defendants' Motion and/or Cross-Motion for Summary Judgment is due on or before December 22, 2008. Defendants' Reply and Opposition to Plaintiffs' Cross-Motion is due on or before December 31, 2008. Plaintiffs' Reply is due on or before January 5, 2009. Signed by Judge Colleen Kollar- Kotelly on November 20, 2008.(lcckk1) (Entered: 11/20/2008) 12/08/2008 39 MOTION to Dismiss or, in the alternative, for Summary Judgment by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Statement of Facts)(Hong, Helen) (Entered: 12/08/2008) 12/08/2008 40 MOTION for Summary Judgment by RICHARD B. CHENEY, EXECUTIVE OFFICE OF THE PRESIDENT, EXECUTIVE OFFICE OF THE PRESIDENT, OFFICE OF THE VICE PRESIDENT, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, ALLEN WEINSTEIN. (See Docket Entry 39 to view document). (nmw, ) (Entered: 12/09/2008) { PACER - 12/20/2008 14:20:28 - CBG }